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Addai v. State

Supreme Court of North Dakota

April 25, 2017

Elijah Addai, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

         Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Douglas R. Herman, Judge.

         AFFIRMED.

          Samuel A. Gereszek, DeMers Ave., for petitioner and appellant.

          Leah Jo Viste, Cass County Courthouse, for respondent and appellee.

          OPINION

          Crothers, Justice.

         [¶ 1] Elijah Addai appeals from the district court order and judgment dismissing his application that newly discovered evidence entitles him to post-conviction relief. We affirm.

         I

         [¶ 2] A jury convicted Addai of murder. This Court affirmed the conviction. State v. Addai, 2010 ND 29, 778 N.W.2d 555. Addai applied for post-conviction relief arguing he received ineffective assistance of counsel. This Court affirmed the denial of his application in Addai v. State, 2012 ND 50, 809 N.W.2d 833. In 2015 Addai applied for post-conviction relief based on newly discovered evidence.

         [¶ 3] The relevant facts underlying Addai's criminal conviction are as follows:

"In the early morning hours of Sunday, August 19, 2007, a group of people gathered at an apartment in south Fargo, including Addai; Addai's friend, Semereab Tesafaye; David Delonais ("Delonais"); and Eric Delonais, Delonais's cousin. There was tension at the gathering between Tesafaye and Eric Delonais. When Delonais and Eric Delonais left the apartment, Addai and Tesafaye followed and a fight broke out behind the apartment building. Addai, Tesafaye, and Delonais were involved in the altercation and had knives. At some point during the altercation, Delonais stabbed Tesafaye in the head, and other individuals from the party later found him lying behind the apartment building in a pool of blood. There was also evidence Tesafaye and Addai may have stabbed Delonais during the fight. Delonais and Eric Delonais attempted to run away from the scene of the fight, but they became separated and witnesses saw Addai following Delonais.
Two newspaper carriers, Roslynn Bolgrean and Mary Albertson, were delivering newspapers approximately one block away from the apartment building at the time of the altercation. They heard footsteps and a commotion and saw two men running down the street toward them. They testified one of the men was black, wearing a light blue shirt with white numbers on the shirt and a white scarf on his head, and he was chasing the other man, who had a lighter complexion. The man being chased was later identified as Delonais, and Albertson and Bolgrean identified Addai as the man who was chasing Delonais. Albertson testified she heard Addai say, "I'm going to cut you, I'm going to kill you, " and saw Addai swinging something at Delonais. Albertson testified she was standing in the driveway of a house when Delonais ran up to her and was close enough she could have touched him. The two men began struggling with each other by Albertson. Albertson testified Delonais was panicking and asked her to help him, and then Addai stabbed Delonais in his side, although she admitted she did not see a knife. Bolgrean testified Addai jumped on Delonais, tousled with him, and then ran off. Albertson testified Delonais said he had been stabbed, blood was coming out of his side, and he asked her to help him. Albertson and Bolgrean called 911."

State v. Addai, 2010 ND 29, ¶¶ 2, 3, 778 N.W.2d 555.

         [¶ 4] The newly discovered evidence Addai alleges in his 2015 application is the recantation of two statements Hamed Zuri gave to police during the investigation. Zuri did not testify at trial. At the evidentiary hearing for Addai's current application for post-conviction relief, Zuri testified he told police nine years earlier he saw Addai with a knife and saw him stab Delonais. Zuri now recants because he believes he did not see Addai with a knife or see him stab Delonais, but believes Delonais had a weapon and made a gesture towards Addai. Zuri testified Delonais was the aggressor and Addai may have been acting in self-defense. According to Zuri, he witnessed the first altercation outside of the apartment but was not present during the events leading up to the fatal altercation.

         [¶ 5] The district court entered an order and judgment denying Addai's claim of newly discovered evidence and dismissing his application for post-conviction relief, finding the evidence had ...


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